The State v Kisimusi E Dhlamini and Others

HUNGWE J had granted bail to three respondents under case number B427-9/09 before leaving for South Africa. Before leaving, HUNGWE J had agreed to swap duties with BHUNU J. The State applied for leave to appeal against the bail order. BHUNU J heard the application on 14 April 2009, postponed it to 15 April 2009, and delivered judgment on 17 April 2009. The three respondents were released on 17 April 2009 on the basis that the seven-day period prescribed by section 121 of the Criminal Procedure and Evidence Act had expired on 16 April without the State lodging its appeal in the Supreme Court. The State then applied for an order canceling the warrant of liberation, re-arrest of the three respondents, and suspension of bail on the basis that their liberation was irregular and unlawful.

• Whether BHUNU J should recuse himself from hearing the application
• Whether allegations in the opposing papers created a reasonable apprehension of bias
• Whether the delay in delivering judgment affected the judge's ability to preside objectively
• The propriety of a judge hearing an application relating to another judge's order when the original judge was temporarily absent

BHUNU J recused himself and withdrew from presiding over the application for cancellation of the warrant of liberation and re-arrest of the respondents.

A judge should recuse himself where allegations made in opposing papers relate to his handling of the matter and place him in an invidious position such that he cannot make an objective determination. The test for recusal is largely subjective, requiring the judge to search his conscience. Where a judge's vision appears to have been 'clouded with the dust of the conflict', the ends of justice are better served by having the matter determined by another judge who has not previously handled the matter.

BHUNU J noted that he was oblivious to any dies inducia (time limit/deadline) while preparing judgment, and that if it had been brought to his attention he would have issued his order with reasons to follow. He explained that he was under the honest view that because the court was seized with the matter, this interrupted the running of time against the applicant, analogous to how this works in prescription matters. The judge also observed that the question of recusal is 'to a large extent subjective', emphasizing the personal nature of the assessment a judge must make about his own ability to preside impartially.

This case illustrates the principles governing judicial recusal in Zimbabwean law, particularly where allegations in opposing papers relate to the conduct of the presiding judge. It demonstrates the judiciary's commitment to avoiding even the appearance of bias, with judges taking a subjective approach to recusal and erring on the side of caution where their objectivity might reasonably be questioned. The case also touches on procedural issues relating to the statutory time limits for appeals in bail matters and the arrangement of judicial duties during a judge's absence.